Even without a confirmed or even acting Commissioner of Social Security, the agency is asking the Office of Management and Budget to approve Revisions to Rules of Conduct and Standards of Responsibility for Appointed Representatives. These would final regulations. Perhaps, they contemplate a new Commissioner being confirmed by the time OMB finishes its work. We cannot know what is in these final regulations. We know that final regulations on this subject had been submitted to OMB near the end of the Obama Administration but were withdrawn just before inauguration. Here's what I wrote at the time the regulations were proposed on August 16, 2016:
The summary provided by Social Security includes a sentence that seems to encapsulate their approach:
The changes to our rules are not meant to suggest that any specific conduct is permissible under our existing rules; instead, we seek to ensure that our rules of conduct and standards of responsibility are clearer as a whole and directly address a broader range of inappropriate conductSocial Security thinks it's important to point out that there's no representative conduct that they find permissible but plenty they want to forbid because they believe it's inappropriate? That certainly suggests as attitude.
Here's a couple of excerpts from the proposal:A representative should not withdraw after a hearing is scheduled unless the representative can show that a withdrawal is necessary due to extraordinary circumstances, as we determine on a case-by-case basis. ...Disclose in writing, at the time a medical or vocational opinion is submitted to us or as soon as the representative is aware of the submission to us, if: ...Why would these be a problem?
As to the withdrawal provision, the agency insists on recognizing only individual lawyers as representing claimants, not law firms. Prohibiting the substitution of one attorney for another after a hearing is scheduled makes it difficult for a law firm to properly allocate its resources and makes it easy for individual attorneys employed by a firm to pick up and leave their firm with the files of their clients after the firm has spent large sums of money on the cases over the many months or years that the firm has represented the claimants. I don't know what the point of this is other than to harass law firms. Let me anticipate the response from a government employee. "Law firms don't spend much money on Social Security cases -- only a few dollars obtaining medical records -- so that's no big deal." Anyone who thinks this has never run a law firm. Law firms spend almost all of their money on salaries and other overhead. The problem is that a law firm may spend thousands of dollars on the office overhead associated with a case only to see an attorney waltz away at the last minute pocketing the entire fee. Is it unreasonable for a law firm to try to make this difficult? What exactly is the problem with a law firm substituting one attorney for another after a hearing is scheduled? It doesn't delay anything.
As to the requirement that attorneys notify Social Security if they suggest medical treatment, if I tell my client that he or she ought to get in psychiatric treatment, I'm supposed to disclose this to Social Security if the psychiatrist later offers an opinion? What if I tell my client to get back to the doctor he or she used to see? Am I supposed to carefully track the advice I give clients about medical treatment?
Withdraw provision: this is a guess, but my thinking is that judges are very frustrated by situations where a representative ditches their client right before the hearing because they don’t think they can win and don’t want to waste money on case prep. That must lead to some administrative headaches since the judge likely needs to postpone the scheduled hearing and offer yet another hearing date for the claimant to find a new representative. I’ve been in that situation as a representative before and I’ve got to say that the new requirement ( showing that the withdrawal is necessary under extraordinary circumstances) is problematic. What would that showing consist of? “ dear Judge, I need to withdraw from representing the claimant whose case you’re about to hear because I don’t believe they’re disabled. Oh, and they lied to me about working and the treatment they received. Good luck everybody! “ kind of a sticky ethical situation, eh?
ReplyDeleteI don’t imagine that this provision was written to prevent firms from switching representatives ahead of the hearing as long as the claimant is ultimately represented. But the way that the language is written could technically apply to this situation.
I have practiced in the field of Social Security Disability since 1979. Over the years I have seen many changes. One of the greatest changes is internet advertising and it's effect on local practitioners. I have had a number of clients come to me after they "hired" an internet law firm that they were not happy with. Several of these clients said they went on-line thinking they were filing for disability with the Social Security Administration only to find that they hired an attorney in California, Utah, Pennsylvania, etc. (all places 1 to 2 thousand miles away). One of the local ALJs told me that one of the internet law firms withdraws from approximately 50% of it's cases once the hearing is scheduled. In my practice I only withdraw when I have been fired. That is extremely rare, but it happens. I even continue to appear when the client has disappeared. I have a number of clients who disappear and then reappear and they end up winning benefits. I always ask the clients who hire the internet firms why would they want an attorney in Utah, California etc when there are local attorneys a mile from their home. Most of them cannot give a good answer. My only answer is to provide good, ethical service. I also agree with Charles comments about law firms. The Social Security Administration needs to acknowledge the existence of law firms.
ReplyDeleteThe situation you explain above, Dan, is certainly the reason for this proposed regulation. Because of the exact reasons Charles describes in his post, my partner and I keep all the cases in our two names. We work the cases up until the hearings are scheduled. At that time, we then withdraw and reassign the hearings to our associates. Because of Social Security's asinine rule of not allowing a claimant to hire a law firm, this causes a ton more effort and paperwork for us and the hearing offices. However, this extra hassle is justified because my partner and I want to retail control of the files until the hearings, give the expenses we have paid to obtain these files (advertising) and prepare the cases for hearings (office overhead, including admin ast salaries and medical record costs).
ReplyDeleteNow I hope common sense will prevail and the hearing offices, which know us well, won't give us a hard time with this process if this regulation becomes final. But that's an assumption I hope we don't need to test.
1, larger firms (from what I have seen) usually do not withdraw the initial attorney, they just appoint a 2nd attorney to attend the hearing. So no withdrawal occurs which would require notice.
ReplyDelete2, state bar rules are binding on attorney representatives. Many would conflict with requiring attorneys disclose their reasons for withdrawing as noted by Dan. I wonder if a boilerplate withdrawal notice, to the effect of: "I withdraw as representative as necessary due to extraordinary circumstances" would suffice. If the statement is made in good faith, the rule change does not actually require providing circumstances for withdraw, only state there are extraordinary circumstances requiring withdraw be able to show such circumstances require withdrawal.
3, Requiring representatives report when they referred or suggested that a claimant seek an examination form, treatment by, or the assistance of the individual providing opinion evidence is odd but I see nothing inherently wrong with it. Other than it will flood OHO with notices. We recommend treatment and obtaining opinions at signup and on a semi-annual basis as the claim proceeds.
There is a 13th amendment against involuntary servitude. We are working contingency. Saying we have to.continue representing a client when we have no guarantee (or in some cases even a possibility) of payment would be a 13th amendment violation. I see this going to supreme court.
ReplyDelete"As to the withdrawal provision, the agency insists on recognizing only individual lawyers as representing claimants, not law firms. Prohibiting the substitution of one attorney for another after a hearing is scheduled makes it difficult..."
ReplyDeleteHave you read a 1696? It allows you to appoint another attorney while indicating that you have a primary representative. The primary representative is not withdrawing.
I typically bite my tongue when I read the comments here, but just can't resist this time.
ReplyDeleteFor those complaining about the new proposals regarding withdraw, I encourage you to read MRPC 1.16(c) (and your state bar's analog). If you'll do so, I think you'll find there's really nothing unusual about SSA's proposal to limit the circumstances in which a representative may withdraw.
More importantly, @4:42: Please let us know when you're trying to withdraw as counsel in a case before a US District Court and decide to raise this rubbish about the 13th amendment. I want to be there to see the look on your Judge's face.
Speaking of District Court, SSA is really opposing party and officially becomes so in District Court. Tell me a case where opposing party needs to approve an attorney's withdrawal. Can you imagine having to get permission from an insurance company that you are making a claim.against, to withdraw from a P.I.claim.?
DeleteLastly, District Court is not designed for pro se representation and does not accept non-attorney reps, unlike SSA.
The big problem now is the Uberization of representation. Big national groups run by hedge funds or venture capitalists advertise on Google, and don't have in house attorneys. They solicit low bids from a national database and use a string of solo practitioners, usually who lost in house jobs at law firms that went under. Tighter regulation of these shops would be nice, as the quality of representation necessarily diminishes when you operate in such a cost cutting manner.
ReplyDeleteLegal Aid lawyers represent thousands of medically uninsured or underinsured disability claimants. In most of those claims we have to help them find medical providers who can treat them. Nothing nefarious. Just trying to help people in a desperate situation get the help they need to survive while their claim is pending. Having to track and report every instance of that would be yet another significant burden not only on us, but also on SSA. At a time of record setting backlogs SSA should refrain from enacting rules that will flood its offices with notices of little to no value in determining disability.
ReplyDeleteDoes a Commissioner have to be in place for these regulations to become law? Previously, an Acting Commissioner was sufficient. Just asking . . .
ReplyDeleteAll the time folks mention State bar ethical guidelines on attorneys and we're talking about a federal regulation. Do yall not remember preemption from law school?
ReplyDelete@ 6:44
ReplyDeletemany of these are run or partially run by nonattorneys. Too bad this stuff isn't the practice of law that only attorneys can do, ethical rules about legal practice ownership and management would likely nip a lot of that uberization in the bud.
Why would law firm attorneys withdraw when the case is being transferred to another attorney within the firm? I have never withdrawn in those situations. We just prepare a second set of forms with myself and the second attorney signing. I remember that several years ago, some firms lost 1/2 of the attorney fees in cases where one attorney withdrew. Another aspect of this issue involves the 1099 forms that SSA sends us. In all cases, we send in a Form SSA-1695. The form includes my law firm corporation Federal I.D. number. It also includes my SSN#. All of my fees are deposited into my corporation account. At the end of the year I receive several confusing 1099 forms. I give the forms to my accountants and every year they have to write a comment with my personal tax return that the Personal 1099 monies are accounted for by the corporation. The numbers associated with the corporation and personal 1099 forms do not add up. I think that they are trying to double tax me. Fortunately, I have a good set of accountants and an excellent set of books.
ReplyDeleteIt is always clear when reading the comments that not everyone graduates at the top of the class in law school!
ReplyDeleteThe withdrawal provision isn't a major problem for most practitioners. We should evaluate the case when we take it. I believe most of my clients are disabled but I understand that I won't always be able to prove them so under SSA standards. I would never consider withdrawing because I don't think I can win. That would not be ethical. SSA needs to consider a way to deal with internet disability representative instead of giving the rest of us a headache.
ReplyDeleteI do think SSA needs to recognize firms as I have seen firms botch up cases when they have a high turnover rate, and the case is still stuck at the firm with no one really responsible for it. I saw a claimant go through three representatives at one firm and wound up unrepresented at the hearing. However, two people can represent the person as it stands now.
Now that regulation about informing SSA about suggestions of medical treatment, that's ridiculous. 6:54 is right on.
State DDS employee here. SSA policy allows for someone to have more than one representative at a time. It happens rarely, but if the FO sends a case with more than one 1696, we have to ask them to determine which is the primary representative if they don't make it clear. So, any firm needing to have someone else appear at a hearing from the firm should be able to submit a new 1696 without withdrawing the first.
ReplyDeleteMy first thought on reading about these changes is that perhaps there was a silver lining in that it might damage or destroy the new business model dubbed here "Uberization". That's a catchy phrase, I like it, but it does a disservice to Uber, that does bring value to the consumer. The likes of Citizen
ReplyDeleteI am glad some commenters here have discussed the new national business model in disability representation, cleverly dubbed “Uberization” in the comments here, practiced by the likes of Citizen’s Disability. This business model substitutes a local attorney or non-attorney rep at the 11th hour, paying that attorney/rep a meager fee for “covering” the hearing. Since these firms do not charge the claimant less than the standard lesser of 25% or $600 rate our moniker “Uberization” perhaps does a disservice to Uber which does at least bring a cost savings to the consumer. Can I suggest the moniker “Citizenization” for the venture capital-funded firm business model that sucks in clients via deceptive e-mail and internet marketing techniques, passes the case to a local contract attorney right before the hearing, bewildering the client as to who is “in charge”, and providing the claimant with no added value in the process?
ReplyDeleteWhen I first read this post my hope was that perhaps this rule might drive a stake into the heart of this unethical business model, as the local attorney appearing at the ALJ hearing must submit her own SSA-1696, usually the day of the hearing. But as other commenters have noted, the rule does not seem directed at this practice, but rather the inefficiencies associated with eve-of-hearing rep withdrawals.
As a private local disability attorney I know my practice has been adversely impacted by “Citizenization”. What is amazing is that these firms require the contract appearance attorney to falsely represent their address as that of the national firm on the SSA-1696, because obviously the national firm wants to maintain control of the mail and receipt of any checks in the case. This is a blatant falsehood – why does OHO allow that?
Moreover, I think that technically the local contract attorney should be filing a Fee Petition on the pitiful little check she gets from Citizens. I guarantee that is not happening. And if it did happen, can you imagine the added work load on ALJs in approving dinky little payments just so Citizens, et. al could maintain their unethical business model?